Removing time-bar from civil actions against child abuse

Legislation to remove the three-year time limit that prevents childhood abuse survivors from seeking civil damages in court has been published in the Scottish Parliament.

The Limitation (Childhood Abuse) (Scotland) Bill – the Scottish Government’s first piece of legislation of the 2016-17 Parliamentary year – is part of Ministers’ wider commitment to fulfil the recommendations from an extensive independent consultation (InterAction) with survivors of childhood abuse conducted in 2014.

Deputy First Minister John Swinney also updated Parliament following further meetings with representatives of survivors on issues relating to the independent public inquiry into the abuse of children in care which started in October last year.

He announced that the Inquiry terms of reference would be amended to make clear its scope includes the abuse of children in care wherever that occurred, though it will not be extended further to include all allegations of abuse in non-residential settings.

The Deputy First Minister also pledged a formal consultation with survivors and other relevant organisations focused specifically on the issue of redress outwith the courts.

“This Government made a clear commitment to lift the three-year limitation period that constrains survivors of child abuse from taking civil actions. Some 18 months on, following detailed consultation on this complex area of law, I am pleased the legislation to deliver that is now published.”

Addressing MSPs, Mr Swinney highlighted the Inquiry’s focus on the abuse of children within institutions which had legal responsibility for the long-term care of children in the place of the parent, including identifying any systemic failures in fulfilling that duty, to ensure lessons are learned.

He said:

“The Government’s intention has always been that the abuse of children and young people in care is to be taken into account wherever it occurred and I want to put that matter beyond doubt. As required, I have consulted the Inquiry chair Lady Smith and amended the terms of reference to clarify this point. That is the only change I intend to make to the Inquiry remit.

“To set a remit which would in practice take many more years to conclude, we would be failing to respond to those survivors of in-care abuse who have taken us at our word – in Government and in Parliament – that we will learn from their experience and, by addressing the systematic failures that existed, ensure it can never happen again.”

On the issue of redress Mr Swinney added:

“I am committing to a formal process of consultation and engagement with survivors and other relevant parties specifically on this subject to fully explore the issues and gather a wider range of views. Discussions have already begun about that engagement process and its timing. I will provide details in the coming weeks and can assure colleagues that I will take this issue forward with the urgency it deserves.

“I am very grateful to survivors for their continued input and engagement and recognise the importance of building their trust and confidence, while being honest with them about what I can realistically deliver. This government remains committed to addressing the issues identified in the InterAction Action Plan on Justice for Victims of Historic Abuse of Children in Care. We have made real progress in delivering its recommendations and the actions outlined today are another important step towards realising our collective goal of addressing the systemic failings which existed and ensuring that children in care are better protected than ever before.”

Following consultation and local engagements in early 2015 on the detailed terms of reference (remit), Ministers announced in May last year that this would be expanded to include child abuse in foster care, boarding schools and long-term hospital care. At that time the Government also pledged to lift the three-year time bar on civil actions in cases of child abuse. Ministers also committed £13.5m to establish an In Care Survivor Support Fund to provide immediate support and practical assistance, and an additional £1m to enhance services for all adult suvivors of child abuse.

Limitation (Childhood Abuse) (Scotland) Bill:

Current law requires anyone who wishes to raise a personal injury action for damages to do so generally within three years of the date on which the injuries were sustained. In practice, this means a survivor of child abuse is usually required to raise civil action by the date of their 19th birthday (three years after they reach the age of 16).

The new Bill, which would amend the Prescription and Limitation (Scotland) Act 1973, applies to abuse against any child regardless of the setting where that took place. It goes further than other jurisdictions by including sexual, physical and emotional abuse where other similar legislation has been limited to only sexual abuse or has only included emotional abuse which is connected to other forms of abuse. It also enables cases previously raised but unsuccessful due to ‘time-bar’ to be re-litigated whether they were determined by the court or settled by both parties without damages paid.

The legislation does not change the law of prescription that has generally extinguished rights to raise actions for abuse which took place prior to 26 September 1964 – given the legal issues for these cases resulting from the law of prescription and the Human Rights legislation which has proved impossible to overcome.

Further information about the progress of the independent public inquiry, including the most recent update from the Chair Lady Smith on October 17th, can be found here: https://www.childabuseinquiry.scot/